Several news sources have reported that the first salvo in the legal battle against manufacturers of vaginal slings have hit home. A California jury has ordered medical device maker C.R. Bard to pay $5.5 million to a woman who received the company's Avulta Plus vaginal implant, which has left her incontinent and in ongoing pain.
According to the plaintiff's attorney, the jury's decision was focused on “evidence...produced showing that Bard didn’t properly test the product before putting it on the market.” The verdict assigns 60 percent of the liability to Bard, while the surgeon who implanted the device four years ago bears the remaining 40 percent.
C.R. Bard, while expressing “empathy” for “complications suffered by the plaintiff,” naturally denies any responsibility. The company has a great deal at stake; Bard recently posted losses of almost $49 billion for the second quarter of 2012. A judgment against the company won't help matters.
The battle is far from over for plaintiff Christine Scott. Corporate defendants in these cases invariably appeal such verdicts, and Bard will be no exception.
As you may be aware, the Federal court system has three layers: the trial courts, where lawsuits originate, the appellate courts (appeals are heard in one of twelve district courts; California is part of the Ninth Circuit), and finally, the Supreme Court. Very few cases of this nature ever come before the Supreme Court, and while it is possible, it is unlikely that the current case will go that far. The Chief Judge of the Ninth Circuit is a Reagan appointee, Alex Kozinski. He is known for being a “high-flying conservative” with libertarian leanings – which does not bode well for the plaintiffs in this case. However, when it comes to liability lawsuits, anything can (and usually does) happen.
In June 2012, Johnson & Johnson's Ethicon unit, which also manufactured transvaginal mesh products that included the Gynecare Prolift, pulled all four of its vaginal sling products from the market. As of this writing, there are over 350 cases pending against Ethicon that have been consolidated and are scheduled to be heard in the New Jersey Superior Court starting this November.
Bazelton, Emily. “The Big Kozinski.” Legal Affairs, January-February 2004.
Feely, Jef. “Bard, Doctor Ordered to Pay $5.5 Million Over Implant.” Bloomberg Businessweek, 25 July 2012.
N/A “National Transvaginal Mesh Law Firm Reports that Ethicon Inc. will Withdraw Four Transvaginal Mesh Devices.” via PRWeb (http://www.prweb.com/releases/2012/6/prweb9575535.htm), 5 June 2012.
Learn more about Transvaginal Mesh Recall